The nature of the Supreme Court - life tenure, the fact that most Justices tend to live long and step down only when illness or death forces the issue, and the enormous stakes in each new Justice's selection - tends unavoidably to set political commentators into full circling-buzzard mode at the first word that a Justice might be ill enough (or, in Justice Stevens' case, simply old enough) to make a vacancy imminent. Tom Goldstein argues that Justice Ginsburg's surgery for pancreatic cancer shouldn't trigger that reaction, despite her age, her prior history with cancer (which apparently makes chemotherapy impossible) and the fact that pancreatic cancer has a famously high and fast mortality rate (think of Gene Upshaw, who died days after his diagnosis). As Goldstein notes, that mortality rate is largely because the disease is rarely detected early, and Justice Ginsburg caught a break in being diagnosed early (as was the case for Steve Jobs).

Of course, as a Supreme Court practitioner, Goldstein has a vested interest in defending a sitting Justice (that's true of me as well), so take it with a grain of salt; but his point is well-taken as far as not jumping to conclusions. We should all wish Justice Ginsburg good health and the freedom to retire or not on her own terms, politics aside. And yes, I know that given the passions the Court arouses and the life-and-death issues it handles, that can be hard at times to do sincerely, but making the effort is itself good for your mental health if you spend too much time in the arena of political blood sport.

All that said, obviously the Obama Administration and Senate Republicans alike need to be thinking ahead to the possibility that her illness at least increases the odds of a vacancy this year, and political commentators being what they are, we can't help but speculate. Goldstein's own site had a list up last week of four possible names - Seventh Circuit Judge Diane Wood, Second Circuit Judge Sonia Sotomayor, Harvard Law Dean (and Solicitor General nominee) Elena Kagan, and Michigan Governor Jennifer Granholm. Three things are clear at this early stage. Number one, if Justice Ginsburg's slot ends up being the first one filled, whether this year or later, the departure of the only remaining female Justice would make it politically impossible for Obama not to pick a woman, hence the names on that list. Number two, whoever it is better have their taxes in order. (I think it's safe to say that for partisan purposes, Republicans would salivate at Granholm, a politician with no judicial experience and a disastrous economic record in Michigan; as a lawyer, I'd rather see someone with actual, proven competence/excellence as a judge and/or lawyer, a point I made repeatedly during the Harriet Miers debate). And number three, to the extent that any nominee is at all controversial, Senate Republicans are going to have to decide if their longstanding principled stand in favor of bringing judicial nominees to a vote - there was no opposition at all to Justice Ginsburg, and no effort to filibuster Justice Breyer - will end up getting discarded, given (1) the prevailing sense that Republican disarmament on this issue has been unilateral and specifically that (2) Obama himself voted against Chief Justice Roberts and voted to filibuster Justice Alito, and is therefore uniquely poorly positioned to demand Senatorial deference to his selections. It's premature as well to make that decision (my own longstanding view is that it's legitimate to use the filibuster to slow down a nomination long enough to gather information and muster political opposition, but not to wholly deny a floor vote), but if there's a vacancy during Obama's presidency, it will surely arise.

I tend to go with the same view. A president's nominee (once past the committee) deserves an up or down vote. As we say, elections have consequences. People knew (or should have known), when they voted for him, the general type of judicial appointments they could expect from Obama. If he nominates a left leaning extremist I expect Republican senators to strongly express their opposition, but I don't desire a filibuster. As you say a delay in order to make the case to the electorate that the nominee is unfit is fine as long as it is just a reasonable delay. Beyond all that, even if the Republicans were as unprincipled as Democrats and tried a filibuster I don't think they have more than 30-35 conservative votes. Specter, Snow, Collins, etc. are not votes to be relied upon, especially regarding liberal justices.

Crank, I gotta give you props for getting qualified to argue before the Supreme Court. That is no easy feat by any means. I also appreciate the respectful tone of this article. Kudos from an unlikely source.

Posted by: seth soothsayer at
February 6, 2009 1:41 PM

Given that they'd probably have a hard time keeping their entire flock on board for a fillibuster, I'd think the Republicans would strategically hold on to their previously stated principles against one, at least while the Democrats hold onto the margin they have, and Obama is exchanging old liberals for new ones. Things would likely be different if a Kennedy or Scalia were to wind up exiting on Obama's watch.

Posted by: Jerry at
February 6, 2009 2:36 PM

As long as the filibuster exists and Republicans have the votes to do so, Republicans should absolutely filibuster ALL objectionable judicial nominations by Democratic presidents. This is a political necessity because Democrats do it to us, but it is also entirely legitimate. The only people qualified to serve as judges are people who interpret the Constitution and statutes of the United States according to what the text actually says -- not what they think it should say, and not what they think certain Congressmen intended it to say based on "legislative history." Judges who rule otherwise violate their judicial oath of office, and any nominee who indicates he would interpret the law as a textualist should therefore not be confirmed.

Posted by: Keith L. at
February 6, 2009 7:49 PM

Above, I of course meant to say that any nominee who indicates he would NOT interpret the law as a textualist should not be confirmed...!

Posted by: Keith L. at
February 6, 2009 9:09 PM

a vested interest in defending a sitting Justice (that's true of me as well)

I'm admitted. I worked on three cases last Term, all as amicus (although in one of them we represented the plaintiff) - Stoneridge v. Scientific Atlanta, Kentucky v. Davis, and Republic of the Philippines v. Pimentel. Have not been in a position to argue one, there are other people at my firm more experienced in that role. Just filed a cert petition today in another case, in which as usual I worked as part of a team.

Steve Jobs does not have the same kind of pancreatic cancer as Justice Ginsburg. He has neuroendocrine tumors, as do I. The diagnostic and therapeutic profile is far different. The survival rate is much better.